Citation Nr: 1120079
Decision Date: 05/24/11 Archive Date: 06/06/11
DOCKET NO. 09-00 624 ) DATE
)
)
On appeal from the
Department of Veterans Affairs Regional Office in Waco, Texas
THE ISSUES
1. Entitlement to service connection for posttraumatic stress disorder (PTSD).
2. Entitlement to service connection for an acquired psychiatric disorder, including chronic adjustment disorder with mixed anxiety and depressed mood.
REPRESENTATION
Appellant represented by: Texas Veterans Commission
ATTORNEY FOR THE BOARD
William Alan Nelson II, Associate Counsel
INTRODUCTION
The Veteran, who is the appellant, served on active duty from August 2001 to August 2004.
This matter is before the Board of Veterans' Appeals (Board) on appeal from a rating decision, dated January 2008, of the Department of Veterans Affairs (VA) Regional Office (RO) in Waco, Texas.
The Veteran requested a Board personal hearing in December 2008. Because the Veteran failed to appear for the hearing, the Board hearing request is considered withdrawn, and the Board will proceed with its adjudication of the appeal. See
38 C.F.R. § 20.704(d) (2010); accord Anderson v. Brown, 9 Vet. App. 542, 546-47 (1996).
Since filing the initial claim for service connection, the Veteran has received diagnoses for other psychiatric symptoms or disorders. Based on the Veteran's contentions, private medical records, VA treatment records, and subsequent treatment of the claim by the RO, the Board has broadened and recharacterized the issues as entitlement to service connection for PTSD and entitlement to service connection for an acquired psychiatric disorder that includes chronic adjustment disorder with mixed anxiety and depressed mood. See Clemons v. Shinseki, 23 Vet. App. 1 (2009) (the scope of a mental health disability claim includes any mental disability that may reasonably be encompassed by the claimant's description of the claim, reported symptoms, and the other information of record).
The aspect of the service connection claim that deals with PTSD is addressed in this decision on the merits; the remaining aspect of a claim for service connection for an acquired psychiatric disorder (other than PTSD), including chronic adjustment disorder with mixed anxiety and depressed mood, is addressed in the REMAND section of this decision. The Board recognized that in most cases it may be more efficient to address all diagnosed psychiatric disorders as part of one issue of service connection for psychiatric disorder, as all service-connected psychiatric disorders would be rated as one disability under 38 C.F.R. § 4.130 (2010) and the grant of service connection for two distinct diagnosed psychiatric disorders would likely involve prohibited pyramiding under 38 C.F.R. § 4.14 (2010). In this Veteran's case, however, because of the distinct regulatory requirements for service connection for PTSD, and because the factual finding in this case is that the Veteran does not in fact have a diagnosed disability of PTSD, the Board finds that the aspect of the claim for service connection for PTSD is ready for adjudication on the merits, whereas the aspect of the broadened claim for service connection for non-PTSD psychiatric disorders is not ready for adjudication. Such bifurcation of a claim generally is within the Secretary's discretion. See Tyrues v. Shinseki, 23 Vet. App. 166, 176 (2009) (en banc) (holding that it is permissible for the VA Secretary to bifurcate a request for benefits on the basis of direct service connection from the request on the basis of presumptive service connection), aff'd 631 F.3d 1380 (Fed. Cir. 2011).
While the Board is adjudicating the claim for service connection for psychiatric disorder as two separate issues, in order to comply with the Court's decision in Clemons, it is doing so to afford the Veteran the benefit of assistance with regard to the remaining aspect of the claim. The Veteran is not prejudiced by the Board's adjudication of the claim as two issues on appeal because any final decision of the Board is appealable to the Court. Tyrues, 23 Vet. App. at 178 (overruling Harris v. Derwinski, 1 Vet. App. 180, 183 (1991) to the extent that "the Court retains its discretion to determine at the threshold that a claim or theory denied by the Board in any such decision or portion of a decision on review is so inextricably intertwined with matters still pending before VA that it should be remanded to VA to await development or disposition of a claim or theory not yet finally decided by VA").
The issue of entitlement to service connection for an acquired psychiatric disorder, chronic adjustment disorder with mixed anxiety and depressed mood is REMANDED to the RO via the VA's Appeals Management Center (AMC) in Washington, DC.
FINDINGS OF FACT
1. The Veteran engaged in combat with the enemy during service.
2. The Veteran does not have a diagnosed disability of PTSD.
CONCLUSION OF LAW
The criteria for service connection for PTSD have not been met. 38 U.S.C.A. §§ 1110, 1131, 1154(b), 5103, 5103A, 5107 (West 2002 & Supp. 2010); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304 (2010).
REASONS AND BASES FOR FINDINGS AND CONCLUSION
Duties to Notify and Assist
The Veterans Claims Assistance Act of 2000 (VCAA) and implementing regulations imposes obligations on VA to provide claimants with notice and assistance. 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2010); 38 C.F.R. §§ 3.102, 3.156(a), 3.326(a) (2010).
The notice requirements of VCAA require VA to notify the claimant of what information or evidence is necessary to substantiate the claim; what subset of the necessary information or evidence, if any, the claimant is to provide; and what subset of the necessary information or evidence, if any, the VA will attempt to obtain. The Board notes that a "fourth element" of the notice requirement requesting the claimant to provide any evidence in the claimant's possession that pertains to the claim was removed from the language of 38 C.F.R.
§ 3.159(b)(1). See 73 Fed. Reg. 23,353-356 (April 30, 2008).
The United States Court of Appeals for Veterans Claims (Court) issued a decision in the appeal of Dingess v. Nicholson, 19 Vet. App. 473 (2006), which held that the notice requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) apply to all five elements of a service-connection claim, including the degree of disability and the effective date of an award. Those five elements include: (1) Veteran status;
(2) existence of a disability; (3) a connection between the Veteran's service and the disability; (4) degree of disability; and (5) effective date of the disability. In the present appeal, because the service connection claim is being denied, and no effective date or rating percentage will be assigned, the Board finds that there can be no possibility of any prejudice to the Veteran under the holding in Dingess, supra.
In a July 2007 letter, the RO provided notice to the Veteran regarding what information and evidence is needed to substantiate a claim for service connection for PTSD, as well as what information and evidence must be submitted by the Veteran, what evidence VA would obtain, and of what assistance the VA could provide the Veteran in obtaining this evidence.
The Board is also satisfied VA has made reasonable efforts to obtain relevant records and evidence, including affording a VA examination. Specifically, the information and evidence that has been associated with the claims file includes the Veteran's service treatment records, post-service VA and private treatment records, VA examination reports, and the Veteran's statements.
Service Connection for PTSD
Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active military, naval, or air service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303(a). For the showing of chronic disease in service, there is required a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time. With chronic disease as such in service, subsequent manifestations of the same chronic disease at any later date, however remote, are service connected, unless clearly attributable to intercurrent causes. If a condition noted during service is not shown to be chronic, then generally, a showing of continuity of symptoms after service is required for service connection. 38 C.F.R. § 3.303(b). Service connection may also be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R.
§ 3.303(d). Personality disorders are not disabilities for VA disability compensation purposes. 38 C.F.R. §§ 3.303(c), 4.9 (2010).
Service connection for PTSD requires: medical evidence diagnosing the condition in accordance with 38 C.F.R. § 4.125(a) (conforming to the Diagnostic and Statistical Manual of Mental Disorders, Fourth Edition (DSM-IV)); a link, established by medical evidence, between current symptoms and an in-service stressor; and credible supporting evidence that the claimed in-service stressor occurred. 38 C.F.R. § 3.304(f). The applicable regulation requires that the in-service stressor or traumatic event involve actual or threatened death, serious injury, or a threat to the physical integrity of self or others and the person's response involve intense fear, helplessness, or horror. See DSM-IV § 309.81 (4th ed. 1994).
In adjudicating a claim for service connection for PTSD, the evidence necessary to establish the incurrence of a stressor during service to support a claim of entitlement to service connection for PTSD will vary depending on whether or not the Veteran was "engaged in combat with the enemy." See Hayes v. Brown, 5 Vet. App. 60, 66 (1993). If it is determined through military citation or other supportive evidence that a veteran engaged in combat with the enemy, and the claimed stressors are related to combat, a veteran's lay testimony regarding the reported stressors must be accepted as conclusive evidence as to their actual occurrence and no further development or corroborative evidence will be necessary, provided that the testimony is found to be satisfactory, that is, not contradicted by service records, and "consistent with the circumstances, conditions, or hardships of such service." 38 U.S.C.A. § 1154(b); 38 C.F.R. § 3.304(d),(f); Doran v. Brown, 6 Vet. App. 283, 289 (1994). To gain the benefit of a relaxed standard for proof of service incurrence of an injury or disease, 38 U.S.C.A. § 1154(b) requires that a veteran have actually participated in combat with the enemy. See VAOPGCPREC 12-99.
If it is determined that a veteran did not engage in combat with the enemy, or the claimed stressor is not related to combat, a veteran's lay testimony alone will not be enough to establish the occurrence of the alleged stressor. In such cases, the record must contain service records or other corroborative evidence which substantiates or verifies a veteran's testimony or statements as to the occurrence of the claimed stressors. See Zarycki v. Brown, 6 Vet. App. 91, 98 (1993).
The Board notes all of the evidence in the Veteran's claims file, with an emphasis on the evidence relevant to this appeal, has been reviewed. Although the Board has an obligation to provide reasons and bases supporting its decision, there is no need to discuss, in detail, every piece of evidence of record. Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (holding that VA must review the entire record, but does not have to discuss each piece of evidence). Hence, the Board will summarize the relevant evidence where appropriate, and the analysis below will focus specifically on what the evidence shows, or fails to show, as to the claim.
In this Veteran's case, the evidence shows that he engaged in combat with the enemy during active service. The Board finds that, based on service records, the Veteran engaged in combat with the enemy during his deployment in Iraq from
April 2003 to March 2004. The Veteran incurred enemy fire and witnessed a vehicle that was hit by an improvised explosive device (IED). An April 2004 post-deployment health assessment reflects that the Veteran saw wounded and killed soldiers and feared for his life. For this reason, 38 U.S.C.A. § 1154(b) is applicable in the instant case.
With regard to the first element necessary for a grant of service connection (medical evidence of PTSD), while there is a diagnosis of PTSD of record, the weight of the competent evidence of record indicates that the Veteran does not have PTSD in accordance with DSM-IV criteria. A November 2007 VA PTSD examination report lists an Axis I diagnosis of alcohol abuse. The VA examiner opined that the Veteran did not have PTSD, but instead had alcohol abuse that resulted in occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks. In a May 2008 private psychological opinion, the private examiner listed a diagnosis of PTSD, rule out major depression. The private examiner reported that the Veteran had recently witnessed a car accident that exacerbated his mental health problems incurred during active service in Iraq. A March 2009 VA PTSD examination report lists an Axis I diagnosis of chronic adjustment disorder with mixed anxiety and depressed mood. The VA examiner opined that the Veteran did not show full spectrum for PTSD diagnosis, but showed impairment in many areas due to the diagnosed adjustment order.
In rendering a decision on appeal, the Board must analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant. Gabrielson v. Brown, 7 Vet. App. 36 (1994); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). The Board is free to favor one medical opinion over another, provided it offers an adequate basis for doing so. See Evans v. West, 12 Vet. App. 22, 30 (1998); Owens v. Brown, 7 Vet. App. 429, 433 (1995). Whether a physician provides a basis for his or her medical opinion goes to the weight or credibility of the evidence in the adjudication of the merits. See Hernandez-Toyens v. West, 11 Vet. App. 379, 382 (1998). Other factors for assessing the probative value of a medical opinion are the physician's access to the claims folder and the thoroughness and detail of the opinion. See Prejean v. West, 13 Vet. App. 444, 448-9 (2000).
A significant factor to be considered for any opinion is the accuracy of the factual predicate, regardless of whether the information supporting the opinion is obtained by review of medical records or lay reports of injury, symptoms and/or treatment. See Harris v. West, 203 F.3d 1347, 1350-51 (Fed. Cir. 2000) (examiner opinion based on accurate lay history deemed competent medical evidence in support of the claim); Kowalski v. Nicholson, 19 Vet. App. 171, 177 (2005) (holding that a medical opinion cannot be disregarded solely on the rationale that the medical opinion was based on history given by the veteran); Reonal v. Brown, 5 Vet. App. 458, 461 (1993) (holding that the Board may reject a medical opinion based on an inaccurate factual basis).
Medical evidence is not limited to that which is provided by doctors. Cox v. Nicholson, 20 Vet. App. 563 (2007). However, the probative value of a medical opinion is also based on the scope of the examination or review, as well as the relative merits of the expert's qualifications and analytical findings. See Sklar v. Brown, 5 Vet. App. 140 (1993). The Board notes, however, that the absence of claims file review does not necessarily render an examination inadequate or reduce the probative value of a medical opinion. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 305 (2008); Snuffer v. Gober, 10 Vet. App. 400 (1997).
The weight of the medical evidence of record demonstrates that the Veteran does not have a diagnosed disability of PTSD. The Board finds the November 2007 VA PTSD examination to be very probative on the question of psychiatric diagnosis. The VA examiner who conducted the November 2007 examination is identified as a licensed psychiatrist. The VA PTSD examination report notes that it was based on a review of the Veteran's claims file and a psychiatric interview. The report sets forth in detail the Veteran's relevant social, military, and medical history. The examiner diagnosed the Veteran with alcohol abuse and opined that the Veteran did not present with PTSD during the examination.
The Board finds that the May 2008 private psychological opinion is of little probative value. There is no evidence to indicate that the PTSD diagnosis was made pursuant to DSM-IV on the basis of a verified history of the Veteran's in-service stressors, as the report itself indicates a recent, post-service stressful event of witnessing a violent collision of two vehicles that had occurred two to three days prior. See, e.g., West v. Brown, 7 Vet. App. 70, 77-78 (1994). There is also no evidence that the examiner reviewed the Veteran's claims file or service treatment records or otherwise based the diagnosis on a thorough and accurate history, as the cursory history presented by the Veteran referenced service in Iraq, but only indicated the symptoms of panic, fear, and guilt. The May 2008 private psychological report does not indicate how a PTSD diagnosis under DSM-IV may have been derived from this scant report of symptoms. In addition, the May 2008 psychological report does not attempt to differentiate the etiology of PTSD between reported in-service stressful events and the more immediate post-service stressful event of motor vehicle collision. See Kowalski, 19 Vet. App. at 177.
The Board finds the March 2009 VA PTSD examination to be very probative. The VA examiner who conducted the November 2007 examination is identified as a licensed psychologist. The report notes that it was based on a psychiatric interview. The report sets forth in detail the Veteran's relevant social, military, and medical history. The examiner diagnosed the Veteran with chronic adjustment disorder with mixed anxiety and depressed mood and opined that the Veteran did not present with PTSD during the examination.
The Board finds the reports of the November 2007 and March 2009 VA examiners, coupled with the evidence showing a diagnosis of chronic adjustment disorder with mixed anxiety and depressed mood, to be the most probative evidence of record as to whether the Veteran has PTSD, including PTSD due to service. The November 2007 VA opinion was thorough and took into account the results of both a clinical interview and psychological testing, as well as a complete review of the claims folder and documented medical history. The March 2009 VA opinion was thorough and took into account the results of both a clinical interview and psychological testing, as well as a complete review of the documented medical history.
Although there is a purported diagnosis of PTSD rendered by a psychologist in May 2008, the Board finds that this evidence is substantially outweighed by the opinions offered by the November 2007 and March 2009 VA examiners. As stated above, the May 2008 diagnosis was based on the assumption that the Veteran was a reliable historian and was providing an accurate picture as to the current nature and severity of his symptoms, and was not based upon a review of the entire claims file. The May 2008 examiner did not review the Veteran's claims file or service treatment records or otherwise based the diagnosis on a thorough and accurate history. The May 2008 diagnosis of PTSD was largely based on the Veteran's report of a recent, post-service stressful event of witnessing a violent collision of two vehicles that had occurred two to three days prior. The May 2008 psychological report does not indicate whether the diagnosis of PTSD is based on reported in-service stressful events (IED explosion near the vehicle) or the more immediate post-service stressful event of motor vehicle collision.
The May 2008 private psychology report does not indicate how the PTSD diagnosis was made. The May 2008 private psychological report does not indicate how a PTSD diagnosis under DSM-IV may have been derived from this scant report of symptoms of panic, fear, and guilt.
Moreover, the diagnoses since the onset of psychiatric symptoms have been that of alcohol abuse and chronic adjustment disorder with mixed anxiety and depressed mood. As noted, the November 2007 and March 2009 VA examiners provided substantial rationales, supported by the results of psychologist testing and references to the Veteran's documented medical history, which demonstrated the diagnoses were not PTSD. Accordingly, the Board finds that the greater weight of probative evidence is against finding that the Veteran has a diagnosed psychiatric disorder of PTSD.
The threshold requirement for service connection to be granted is competent medical evidence of the current existence of the claimed disorder. See Degmetich v. Brown, 104 F.3d 1328 (1997); Brammer v. Derwinski, 3 Vet. App. 223 (1992). Therefore, without a current disability of PTSD, there may be no service connection for the claimed PTSD. As such, the weight of the competent and credible evidence of record does not satisfy the elements of a PTSD claim under the criteria of 38 C.F.R. § 3.304(f) because it shows that the Veteran does not have PTSD. For these reasons, the Board finds that a preponderance of the evidence is against the Veteran's claim for service connection for PTSD, and the claim must be denied. Because the preponderance of the evidence is against the claim, the benefit of the doubt doctrine is not for application. See 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102.
ORDER
Service connection for PTSD is denied.
REMAND
In June 2007, the RO received the Veteran's claim for service connection for PTSD. when a veteran seeks service connection for a particular psychiatric disorder, such as PTSD in this instance, VA must consider whether a veteran is also seeking service connection for any other diagnosed acquired psychiatric disorder. In this case, the record shows that the Veteran experienced a variety of psychiatric symptoms and has been diagnosed with different psychiatric disorders. For this reason, by broadening the service connection claim to include non-PTSD diagnosed psychiatric disorders, the Board will consider whether service connection is warranted for other psychiatric disorders. See Clemons, 23 Vet. App. at 1.
In this case, the Veteran has been diagnosed with chronic adjustment disorder with mixed anxiety and depressed mood. The Board finds that a REMAND is needed to address the question of service connection for an acquired psychiatric disorder, including to permit appropriate procedural and evidentiary development, such as a VA mental disorders examination and nexus opinion(s). See 38 C.F.R. § 19.9 (2010).
In an April 2004 post-deployment health assessment, while in service, the Veteran reported symptoms of feeling down, depressed, and hopeless. The Veteran also reported symptoms of nightmares and being easily startled. As the record shows diagnoses of multiple mental disorders and a history of mental health issues in service, the Board finds that a comprehensive examination is needed to determine the diagnosis of any current psychiatric disorder, and for an opinion as to whether any diagnosed psychiatric disorder is related to service, including to combat in service.
Accordingly, the remaining issue of service connection for an acquired psychiatric disorder (including chronic adjustment disorder with mixed anxiety and depressed mood) is REMANDED for the following action:
1. The RO/AMC should request an addendum opinion from the VA psychiatrist who examined the Veteran in March 2009 and provided an opinion regarding PTSD. If this VA examiner is unable, or is unable to provide an opinion without an examination, the Veteran should be scheduled for another VA mental disorders examination. If that examiner is no longer available, request an examination from an appropriate VA psychological examiner.
All tests and studies deemed necessary by the examiner should be performed. Based on a review of the claims file and the clinical findings of the examination, the examiner is requested to provide a diagnosis or diagnoses corresponding to the claimed psychiatric disorders.
For all psychiatric diagnoses, the examiner is requested to offer an opinion as to whether it is at least as likely as not (that is, a 50 percent or greater probability) that the diagnosed disorders are etiologically related to the period of active service. In this case, the Veteran has been previously diagnosed with chronic adjustment disorder with mixed anxiety and depressed mood. Specifically, the examiner should comment on the symptoms of nightmares, depression, and feelings of hopelessness in service, as well as the established episode of IED explosion near the Veteran's vehicle.
A complete rationale should be given for all opinions and conclusions expressed in a typewritten report.
2. After completion of the above development, the claim for service connection for an acquired psychiatric disorder should be readjudicated. If the determination remains adverse to the Veteran, he and his representative should be furnished with a Supplemental Statement of the Case, and should be given an opportunity to respond.
The purpose of this remand is to obtain additional development. No inference should be drawn regarding the final disposition of the claim in question as a result of this action. The Veteran has the right to submit additional evidence and argument on the matter the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). The Veteran is advised to appear and participate in any scheduled VA examination, as failure to do so may result in denial of the claim. See 38 C.F.R. § 3.655 (2010).
This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2010).
______________________________________________
J. Parker
Veterans Law Judge, Board of Veterans' Appeals
Department of Veterans Affairs